Friedman discusses Supreme Court's relationship with public in Boston Globe

In the wake of former NYU School of Law adjunct professor Sonia Sotomayor's Supreme Court nomination hearings, Vice Dean Barry Friedman, Jacob D. Fuchsberg Professor of Law, discussed in a Q&A interview in the July 26 Boston Globe the correlation he has found between Supreme Court jurisprudence and the trends of public opinion, a parallel that is the topic of Friedman's forthcoming book, The Will of the People.

The notion that the Supreme Court is elitist and disconnected from the popular will is not supported by the facts, Friedman said: "At least in the period since 1960, the court’s decisions tend over time to converge with public opinion. The court and the public are on the same page, and that totally raises eyebrows. It is not what you think the court is doing.... On the salient issues, on the big issues, over time, the court and public opinion come in sync with one another." The judicial mirroring of society at large, he added, is not necessarily pandering. "The justices are human. It’s not just that they like to be liked, although often they do like to be liked, it’s just that they are living in exactly the same society that we’re living in. They’re looking at the same stuff."

Friedman observed that this phenomenon is double-edged. "Everybody who is angry that the court would act contrary to the popular will, you can relax. It turns out that is not true. But now all of you who like the court to be there as a safeguard... you should be a little concerned." He invoked the example of Japanese American internment camps in World War II; subject to contemporary prejudices, the Supreme Court upheld the camps' constitutionality in 1944.

Among the key decisions highlighting his thesis, Friedman said, are Brown v. Board of Education (1954) and Roe v. Wade (1973). The former opinion was consistent with the evolution of the people's will, while the latter led to decades of sharp disagreement culminating in Planned Parenthood v. Casey (1992), which made it easier for states to place certain restrictions on abortion. All of these decisions, he said, indicate a court trying to find the mainstream.

The Supreme Court's nods to popular will, Friedman said, make it stronger rather than weaker: "I think one of the things that powers the court is the loss of faith in democratic institutions. People aren’t sure whether Congress represents their will, or whether state legislatures represent their will. They’re worried about special interests. Even in the political parties, they see extreme partisan bickering. The court manages on some very contentious social issues to nonetheless steer down the line of public opinion. I think that’s a great source of power for the court."